| Matter of Dominguez v Vanamerongen |
| 2008 NY Slip Op 09076 [56 AD3d 667] |
| November 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Joe Dominguez, Appellant, v DeborahVanamerongen et al., Respondents. |
—[*1] Gary R. Connor, New York, N.Y. (Caroline M. Sullivan of counsel), for respondent NewYork State Division of Housing and Community Renewal.
In a proceeding pursuant to CPLR article 78 to review a determination of the DeputyCommissioner of the New York State Division of Housing and Community Renewal datedMarch 15, 2007, which, inter alia, denied the tenant's petition for administrative review of anorder of the District Rent Administrator dated October 16, 2006 finding that the landlord had notprovided an adequate substitute for a required service, the petitioner tenant appeals from ajudgment of the Supreme Court, Kings County (Dabiri, J.), dated September 10, 2007, whichdenied the petition and dismissed the proceeding seeking, inter alia, an increase in penaltiesagainst the landlord.
Ordered that the judgment is affirmed, with costs.
The principal issue determined by the New York State Division of Housing and CommunityRenewal (hereinafter the DHCR) was whether the petitioner and other tenants at 409 7th Avenuein Brooklyn had sustained an improper substitution related to a "required service" as defined bythe Rent Stabilization Law of 1969 (Administrative Code of City of NY § 26-514;Matter of Hyde Park Gardens v State of N.Y., Div. of Hous. & Community Renewal, Off. ofRent Admin., 140 AD2d 351 [1988], affd 73 NY2d 998 [1989]). Specifically, theissue determined by the DHCR was whether there had been an improper substitution since thelandlord had moved the garbage receptacles into the basement of the building from [*2]the outside front of the building. " 'The question of what constitutesa required service presents a factual issue which is to be determined by the . . .administrative agency' " (Matter of Hyde Park Gardens v State of N.Y., Div. of Hous. &Community Renewal, Off. of Rent Admin., 140 AD2d 351, 352 [1988], affd 73NY2d 998 [1989], quoting Fresh Meadows Assoc. v Conciliation & Appeals Bd., 88Misc 2d 1003, 1004 [1976], affd 55 AD2d 559 [1976], affd 42 NY2d 925[1977]). The DHCR found that the service provided was not adequate. The DeputyCommissioner, in denying administrative review, determined that the DHCR's finding wasproper and that the doctrines of res judicata and collateral estoppel were not applicable since aprior proceeding in the 1990s before the DHCR relating to the landlord's elimination of garbagereceptacles differed from the instant proceeding before the DHCR.
In reviewing a determination made by an administrative agency such as the DHCR, thecourt's inquiry is limited to whether the determination is arbitrary and capricious, or without arational basis in the record and a reasonable basis in law (see CPLR 7803 [3]; Matterof Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of ATM One, LLCv New York State Div. of Hous. & Community Renewal, 37 AD3d 714 [2007]). "Anagency's interpretation of the statutes and regulations that it administers is entitled to deference,and must be upheld if reasonable" (Matter of ATM One, LLC v New York State Div. ofHous. & Community Renewal, 37 AD3d at 714).
The Deputy Commissioner's determination could be annulled only if it lacked a rationalbasis, or was arbitrary and capricious (see Matter of Gilman v New York State Div. of Hous.& Community Renewal, 99 NY2d 144, 149 [2002]; CPLR 7803 [3]). Here, the DeputyCommissioner's determination was rational, and was not arbitrary and capricious. Accordingly,the Supreme Court properly denied the petition and dismissed the proceeding. Santucci, J.P.,Covello, Leventhal and Belen, JJ., concur.